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The American Fertility Association Blog

Justice Sotomayor – How Will Her Confirmation Affect Those Suffering from Infertility?

July 22, 2009 - Wednesday
Posted by Lisa

By:  Theresa Erickson, Esq.

While watching the confirmation hearings last week (yes, I am one of those dorky lawyers), I was listening for any cues regarding how she may address a case that involved fertility treatments, fertility coverage, pregnancy discrimination (including pre-pregnancy for IVF treatments) and, of course, a woman’s right to chose, including the right to privacy involving medical treatments.  Now, mind you, I understand regulation may be needed in some areas of this industry, but I also do not want to see the government restricting our ability to create a family, regardless of marital status, age, or sexual orientation.  Again, these are issues that must be determined between a physician and their patient when he or she is accessing the health risks for the woman carrying the children, as well as any harm that may come to the future children in terms of prenatal health. 

I did discover, despite her attempts otherwise, that she appeared to hold a liberal point of view in many ways, which despite my own leanings, is important when it comes to autonomy for those patients and those involved in this industry.  However, regardless of her political stance, what is important is that she applies the law neutrally with a perspective of her life experience.  I know that many do not agree with that statement, but we all must agree that it is not humanly possible to take one’s own life experiences out of the picture when making decisions.  What we do want is for judges to use that experience, while simultaneously utilizing an objective vision when making decisions that will affect us all, as well as future generations.

Of course, much of what we do and what our clients/patients deal with is family law.  Judge Sotomayor has little experience in that area due to her previous posts as a federal judge, as most Supreme Court judges.  Even the Supreme Court itself has little experience in that area.  The most notable family law case is the case of Troxel v. Granville in which the Supreme Court did strike down a trial court judge’s decision to allow grandparent visitation involving a completely fit mother.  They were concerned that the judge had used his personal experience in making the decision since he stated he truly enjoyed his time with his grandparents as a child.  But, as I stated above, personal experiences do shape our lives and how we shape our decisions; however, in this case, the Court did not state that the judge did anything wrong in doing so, it was merely that it was a case with a backdrop of a fit mother.  Different set of facts could have created a different ruling. 

Now, with that in mind, Justice Sotomayor is a woman – she has no children, and she has been battling diabetes since the age of 8.  Does that make her more sympathetic to our plight or not?  I am not certain, as we do not know why she does not have children or if it was a path she chose.  But, we do know that she knows what it is like to battle a disease that controls your life, which should be good for those of us in the community. 

Remarkably, after reviewing her previous decisions, I was unable to locate much information on how she would rule if any such case comes before her.  In fact, she has not dealt with stem cell research regulation of Assisted Reproductive Technologies, healthcare choices, or on-point abortion cases; however, there are a few notable cases that she has dealt with as a judge:

1.  Saks v. Franklin Covey Co (316 F.3d 337 (2d Cir. 2003)) – This is a bioethical issues case in which she joined a Second Circuit opinion rejecting a claim that exclusion from coverage of surgical impregnation procedures, including in vitro fertilization, violated Title VII and the “Pregnancy Discrimination” Act.  Note that this does not assume that she is against IVF, only that she did not judge that that particular case was within the parameters of the Pregnancy Discrimination Act, which is her duty as a judge – to interpret law, not make laws.  For changes like this to be made, we need to address our Congress to have them amend these laws as they currently stand. 

      2.  Center for Reproductive Law and Policy v. Bush (304 F.3d 183 (2d Cir. 2002)) – Judge Sotomayor found that a “reproductive rights” group had standing to challenge the Mexico City Policy.  She concluded that the group had “competitive advocate standing,” on the grounds that the government’s allocation of a benefit “creates an unequal playing field” for organizations advocating their views in the public arena.  She agreed that the government had a rational basis for favoring “the anti-abortion position over the pro-choice position” with public funds.  Again, as the above case, since this case is not on point, we truly do not know how she would rule regarding the right to life, the right to abortion, status of embryos, etc.

Ultimately, based on her performance at the hearings and her record, and despite a few bumps in the road involving the case of the firefighters, it does appear that she will be confirmed prior to the start of the next Supreme Court session.  And, of course, I am truly excited, as a woman, as a lawyer, and as a member of the US Supreme Court Bar, that there is another woman on the bench.  Call me sexist, call me whatever you want, but we need diversity on the bench so that those who have never “walked in our shoes” can see the perspective, albeit objectively, when our cases come before them. 

 

 

Categories
Fertility • Infertility • IVF • Pregnancy • Reproductive Freedom

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